Wednesday, May 8, 2013

State officials refuse to release health care report from consultant

State officials are refusing to release a consultant's findings for a plan to cover people without health insurance, Oklahoma Watch reports.
The Oklahoma Health Care Authority is claiming the findings, though delivered to the state agency, are covered by an exemption in the state Open Records Act for "personal notes and personally created materials."
Oklahoma Watch noted that the state hired the consultant, Leavitt Partners, for $500,000 in January to review operations of the state’s Medicaid program, SoonerCare, as well as other states' health programs that would expand health coverage and improve health outcomes.
Oklahoma Watch said the final report would be released June 30 and incorporate feedback from state officials.
In the meantime, the Oklahoma Open Records Act contains no provision allowing governments to keep "drafts" secret from the public.
The statute permits governments to keep confidential "personal notes and personally created materials . . . prepared as an aid to memory or research leading to the adoption of a public policy or the implementation of a public project."
The exemption applies only prior to the official "taking action, including making a recommendation or issuing a report." (OKLA. STAT. tit. 51, § 24A.9)
An agency spokeswoman told Oklahoma Watch that the consultant’s draft report contains the findings of its months-long study.
Some of the findings and recommendations from the plan will be presented in a PowerPower slide-show presentation at the Oklahoma Health Care Authority's board meeting Thursday, Oklahoma Watch reports.
An Oklahoma Health Care Authority spokeswoman said the slide show will be released after the meeting.
But Howard Pallotta, general counsel for the Health Care Authority, told Oklahoma Watch that the agency does not have to immediately release the draft report or PowerPoint images in response to Oklahoma Watch's records request.
Pallotta's statement seems contrary to the Open Records Act and to a 2009 state Court of Civil Appeals decision ordering Lawton officials to release a "draft" audit conducted by an independent auditor. (Int'l Union of Police Assoc. v. City of Lawton, 2009 OK CIV APP 85)
"In determining whether material is a 'record' subject to inspection under the ORA, or exempted 'personally created materials,' we 'focus on the totality of the circumstances surrounding the creation, maintenance, and use of the document,' regardless of the 'status' of a document as 'preliminary' or 'final,'" the court said. (Id. ¶ 18)
At the time the police union had requested the audit, the court noted, "City clearly possessed and controlled a preliminary draft of the requested Audit Report." (Id. ¶ 19)
"And most importantly," the court said, "it is also undisputed that City used the draft Audit Report as the basis for testimony and evidence offered at the arbitration hearing, and the fact that City withdrew its exhibits based on the draft Audit Report does not alter the fact that City used the draft Audit Report to prepare for and oppose Union's requested arbitration. (Id.)
"Given ... City's use of the draft Audit Report to prepare for and oppose Union's demanded arbitration, we hold Union was entitled to inspect and copy the draft Audit Report under the ORA," the court concluded. (Id. ¶ 20)
Oklahoma Health Care Authority officials concede that the state agency has received the report and is making use of it. In other words, state officials clearly possess and control the report.
The court in 2009 had also taken into account the purpose of the Open Records Act "to ensure and facilitate the public's right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power." (Id. ¶ 13, quoting OKLA. STAT. tit 51, § 24A.2)
Given that purpose, the Oklahoma Supreme Court said in 1986, "Disclosure is to be favored over a finding of exemption" when public bodies and courts rule on records requests. (Tulsa Tribune Co. v. Okla. Horse Racing Comm’n, 1986 OK 24, ¶ 22)
The Oklahoma Health Care Authority is "the primary entity in the state of Oklahoma charged with controlling costs of state-purchased health care." The seven members of the OHCA Board are appointed by the governor, Senate president pro-tempore and House speaker.
Time for these elected officials to tell their political appointees to cough up now the report already in the hands of OHCA.

Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

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Differing interpretations of law and policy are welcome. Personal attacks and character assassinations will be rejected.